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Since September 11 judicial protections for reporters have been eroding rapidly
Koningisor, Cristina 2018 [First Amendment Fellow @ The New York Times; JD from Yale Law
School] “The De Facto Reporter’s Privilege.” The Yale Law Journal, 2018, 93. ekl
This shift in interpreting Branzburg is not the only way that judges are withdrawing protection.
There are also indications that judges today are more willing to find reporters in contempt for
refusing to reveal confidential information.366 During his 2007 testimony before the House
Judiciary Committee, media lawyer Lee Levine stated that he had not found a single example of
a reporter being held in contempt for refusing to disclose a confidential source in federal court
between 1976 and 2000; by contrast, “at least a dozen” were held in contempt between 2001
and 2007.367 Moreover, when reporters are jailed for contempt, judges appear more willing to
impose lengthy terms of confinement. Prior to Branzburg, judges rarely jailed reporters for more
than a month, often ordering reporters jailed for mere days.368 By contrast, from 2001 to 2007,
federal appeals courts issued a series of harsh punishments for reporters found in contempt,
with “each court imposing prison sentences on reporters more severe than any previously
known in American history.”369 In 2007, for example, videographer Joshua Wolf spent seven
months in jail for refusing to turn over unpublished footage from a G-8 protest.370
There is also evidence that judges today are more willing to impose very large fines. In 2005, for
example, five reporters were held in contempt for refusing to reveal the identities of
confidential sources, and their respective employers paid $750,000 to avoid the imposition of
judicial sanctions.371 In 2008, a judge ordered a reporter to pay up to $5,000 a day for a week
for refusing to disclose a confidential source, and took the “unprecedented step”372 of barring
anyone else from helping to pay the reporter’s fines.373 By contrast, a federal district court in
1980 fined CBS one dollar per day for refusing to comply with a court order to surrender
unpublished video and audio tape.374 Commenting on this case, Wright and Graham observed
that “[o]ne may suspect that some . . . charade is being enacted when a wealthy television
network that refuses to produce material needed by a criminal defendant on grounds of
privilege is subjected to civil contempt with a sanction of a $1 per day fine.”375 And, at least
anecdotally, the harshest penalties today far exceed the costliest fines imposed prior to
Branzburg, even accounting for inflation.376
Faced with this evidence, some members of the press have concluded that they can no longer
rely on the judiciary for protection. In a 2006 New York Times column, David Carr observed,
“Within the news business, there is a consensus that the roof is caving in on the legal
protections for working journalists.”377 Some legal scholars agree. In 2014, David Pozen noted
that in the wake of September 11, courts have “pulled back on the reporter’s privilege,”
particularly in the national security context.378a
In addition, the executive branch has increased the amount and type of information it classifies,
which in turn has had an impact on the reporters who receive and publish classified information.
Nearly twice as many documents were classified in 2004 as in 2001.388 Simultaneously, the
declassification process has slowed: 204 million pages were declassified in 1997, compared with
28 mil- lion pages in 2004.389 This over-classification makes it more likely that sources sharing
information with the press will be “leaking” secret information, which in turn increases the
chance of conflict between the press and the executive.390
Finally, recent administrations have been more aggressive regarding enforcement. The Obama
Administration prosecuted nine cases involving whistle- blowers and leakers—three times as
many as all past administrations combined.391 Attorney General Sessions announced in August
2017 that the Department of Justice is pursuing three times as many leak investigations as the
number of investigations open at the end of the Obama Administration.392 In November, he
testified before Congress that the government had twenty-seven leak investigations open.393
And a September 2017 memo from National Security Advisor H.R. McMaster requested that the
head of every federal agency organize a training on the “importance of protecting classified and
controlled unclassified information, and measures to prevent and detect unauthorized
disclosures.”394 Such efforts “remind[] us of the responsibilities that come with access to, and
penal- ties for unauthorized disclosure of, classified information,” the memo continued.395
Such actions may damage the credibility of the press and undermine longstanding democratic
traditions and norms.398 But they also raise the specter that these smaller threats are merely
the precursors to more aggressive action against the press, such as the selective enforcement
of laws criminalizing the publication of classified information or the selective subpoenaing of
reporters as a means of silencing political dissent. Indeed, former FBI Director James Comey
disclosed that in a February 2017 meeting, President Trump criticized leaks to the news media
and asked Mr. Comey to consider imprisoning reporters for publishing classified information.399
Such an action would break with a century- long tradition of declining to prosecute reporters for
receiving or disseminating classified material.400
First, if the law-in-action question that Congress needs to answer is whether the existence of a
federal shield law for reporters would have value to the newsgathering operations of the
targeted population—and therefore to the general public that receives the news that this
population produces—the answer appears to be yes. The breadth and depth of the qualitative
and the quantitative data demonstrate that both the threat and the reality of subpoenas alter
behaviors in newsrooms of all sizes. Although the data suggest that the mere existence of a
shield law does not spare newsrooms from all costs associated with subpoenas, a shield law can
go a substantial distance in alleviating newsroom concerns. Moreover, a clearly worded, easily
invoked shield law would go a long way toward protecting newsrooms from subpoena-induced
interference with newsgathering, particularly if coupled with an education campaign that
informed both attorneys and journalists of the protection’s contours. Without question,
members of the media are keenly aware that their legal climate is changing for the worse and
believe that the wave of recent cases has emboldened subpoenaing attorneys and discouraged
potential sources. Even if other social forces—like the general decline in public respect for the
media—have contributed to the willingness of attorneys to issue subpoenas to members of the
media, a well-publicized federal reporter’s shield would send a more unified message on the
question of media subpoenas and cause at least some attorneys to rethink their views of media
susceptibility to them.
The strength of respondents’ perceptions that subpoenas are on the increase, that attorneys are
more willing to subpoena them, and that their subpoena risk is up, combined with perceived
consequences of these trends, suggests strongly that the recent wave of losing cases has led to
something of a nationwide chill. Indeed, the overwhelming sentiment expressed by survey
respondents is fear. They fear that their already struggling businesses will not have the financial
or institutional wherewithal to challenge subpoenas—particularly if the chances of prevailing
are slim—and that the inevitable result is a very practical limitation on the watchdog function
that most newsroom leaders still see as a vitally important aspect of their work. Subpoenas are
only one piece of this complicated puzzle, but the survey results suggest they are a critical one,
largely because the recent surge of losing cases seems to have steeled attorneys and made
them more willing to subpoena the press, while spurring a wave of terror in journalism that is
leading even those who have not been subpoenaed to limit their news coverage. Nearly all of
the participants operated in a state with some form of reporter’s privilege, suggesting that the
absence of clarity as to federal protection is the source of much of this concern. Closing the
circle with a federal legislative shield could be expected to have ramifications outside the realm
of federal courts. It might well change the tenor of the legal environment and have the larger
societal effect of eliminating some of the costs to newsgathering that are now experienced by
those who have state-level protection that does not provide fully effective prophylaxis because
of the perceptions of acceptability that are fostered by the absence of federal protection. It also
almost certainly would have a direct impact on the working journalists who cannot now know,
at the time that they engage in newsgathering, whether a future subpoena related to that
newsgathering might be issued in state court, where they ordinarily are protected, or in federal
court, where they increasingly are not.
Confidential sources drive groundbreaking reporting
Handman 14. Handman, Laura R. [“Partner, Davis Wright Tremaine LLP. Ms. Handman has
defended a number of media organizations in response to subpoenas for disclosure of sources
and authored amicus briefs on behalf of media organizations in appeals involving reporter's
privilege.”] 2005 “Protection of Confidential Sources: A Moral, Legal, and Civic Duty.” Notre
Dame Journal of Law, Ethics & Public Policy. Volume 19, Issue 2 ekl
Some of our country's most significant political stories have come to light through the efforts of
confidential sources. In the Pentagon Papers case, for example, the press published highly
classified documents concerning the governmental policies that entangled the United States in
Vietnam, despite the fact that the documents were "feloniously acquired" by an unnamed
source. In the Watergate investigation, reporters Woodward and Bern- stein received and relied
upon information regarding the misuse of presidential campaign funds from a confidential
source 6 known as "Deep Throat."
In the years since Watergate, some of the biggest stories involving government corruption or
deception have resulted from information provided by confidential sources, involving such
topics as how the FBI's Surreptitious Entry Program routinely broke into people's homes and
offices; how the United States masterminded a 1953 coup d'etat in Iran; how a sitting U.S.
senator was potentially abusing his authority,7 the Iran-Contra "arms for hostages" deal; and
the Anita Hill story that almost derailed a Supreme Court nomination.' One empirical study
found that forty-two percent of former federal officials who occupied policymaking positions
stated that they had provided confidential information to the press during their tenure in
office.9
More recently, the reporters who broke the Abu Ghraib prison scandal received photographs
and other information from unidentified sources.10 After the initial stories were published,
other soldiers, who also requested anonymity, came for- ward with more evidence." Later,
unidentified sources within the military provided a reporter with internal records from the
Pentagon indicating investigations in some seventy-five cases of detainee abuse, including
twenty-seven abuse cases involving deaths; at least eight believed to be homicides. 2 Without
the press's reliance on anonymous sources, the Abu Ghraib prison abuses would not have been
reported to the public.
Reporters also rely upon confidential sources to investigate important stories outside the
political arena. For example, reporters relied upon confidential sources in their investigation of
the Enron accounting fraud scandal.' 3 Recent stories detailing how cigarette companies
manipulate nicotine delivery in their products and how such companies have suppressed
information regarding the health risks of tobacco were made possible only by the transmission
of stolen documents that the companies claimed were subject to a judicial protective order.'4 A
Pulitzer Prize-winning series of articles reported on more than 230 fertility fraud stories,
exposing cover-ups, intimidation of clinic employees, and hush money payments. As a result, the
clinic in question closed, families learned the true biological origins of their children, and the
American Medical Association issued new guidelines for fertility clinics. Although all of the
individuals quoted in the stories were identified, the reporter relied upon clinic records she had
obtained from unidentified sources.15 Reporters may not have been able to provide the public
with these kinds of groundbreaking stories without the ability to promise confidentiality to their
sources.16
Journalism’s crucial role in helping democracy function is sometimes forgotten amid the clamor
of partisan debate and the messy nature of the news business. But anyone who stops to
examine recent examples of journalistic success — and the substantial civic impacts of various
news media investigations — cannot help but be impressed by the vital role of the press. Six
examples from the past year that show journalism’s impact are enumerated below. These
stories helped root out corruption, create better laws and practices, and changed the way we
live for the better. They make for a powerful reading list, whether for average citizens, aspiring
journalists or anyone concerned with the press and public policy. As many journalistic outlets
continue to struggle financially — and the news media contracts as an industry, leaving many
statehouses, public agencies and local governments under-examined — there can be little
doubt that many problems in society might be forgotten were it not for some smart, persistent
and courageous news professionals. These stories speak to that truth. Although the Internet can
help as an investigative tool and platform for engaging the public, it takes professional reporters
to initiate and follow-through on everything from interviews to document requests. Further,
turning raw data and information into easily digestible knowledge for public consumption —
putting it into narrative story form or making it clear through visual means — takes painstaking,
creative work. Of course, it takes the will of public officials to act on these investigations and
formulate concrete policy responses. Below are the six finalists for the 2013 Goldsmith Prize for
Investigative Reporting, awarded by the Shorenstein Center on Media, Politics and Public Policy
at the Harvard Kennedy School. Northeastern University media critic Dan Kennedy, one of the
prize jurors, noted at his blog, “At a time when news organizations are struggling to survive, it
was heartening to see so much good work.” The civic impact of each story is provided below
each case; those descriptions were furnished by each reporting team. “Cheating our Children”
The Atlanta Journal-Constitution By Alan Judd, Heather Vogell, John Perry, M.B. Pell The Atlanta
Journal-Constitution’s year-long series on irregularities in standardized testing revealed that
pressure for ever-higher test scores had led to apparent cheating by teachers and school
administrators across the nation. The newspaper’s reporting, based on its unprecedented
analysis of tens of thousands of test results, initiated a national conversation about the long-
term effects of the accountability provisions of the federal No Child Left Behind Act. Impact: It
took three years of relentless coverage by the Atlanta Journal-Constitution, followed by a state
investigation, to get school officials to acknowledge that their system had engaged in the worst
case of adult-directed school cheating ever detected in the United States. The series prompted
numerous large school districts across the country — from Baltimore, Md. to Mobile, Ala. to
Denver, Colo. — to reevaluate test scores. Investigations were launched in other cities; these
may ultimately result in criminal charges. “The iEconomy” The New York Times Charles Duhigg,
Keith Bradsher, David Barboza, David Segal and David Kocieniewski This series revealed the
harsh, at times deadly conditions under which Chinese workers assembling iPhones and iPads
live and work; the low pay and high turnover at Apple’s retail stores; the lengths to which Apple
went to reduce its tax bill, and the shortsightedness of its conclusion that Apples couldn’t be
manufactured in America. Impact: As a direct result of the Times series: More than a million
workers at the Chinese factories that make Apple’s iPhones and iPads got 25 percent raises.
Their working conditions vastly improved after Apple’s supplier plants were opened to outside
inspections for the first time. Apple tripled its corporate social responsibility staff, re-evaluated
how it works with manufacturers, asked competitors to help curb excessive overtime in China,
and reached out to advocacy groups it once rebuffed. It publicly identified its suppliers for the
first time. Apple announced it would invest $100 million to manufacture some computers in the
United States. Other computer companies like Hewlett-Packard and Intel began to rethink how
they deal with overseas suppliers. Congress opened an investigation into technology companies’
tactics to reduce their tax bills. “Playing with Fire” The Chicago Tribune By Patricia Callahan, Sam
Roe and Michael Hawthorne The Chicago Tribune’s investigative series revealed how a
deceptive, decades-long campaign by the chemical and tobacco industries brought toxic flame
retardants into our homes and into our bodies, despite the fact that these dangerous chemicals
don’t work as promised. Impact: As a result of the Tribune investigation, the U.S. Senate revived
toxic chemical reform legislation and California moved to revamp the rules responsible for the
presence of dangerous chemicals in furniture sold nationwide. The paper’s investigation
prompted two hearings in the Senate and one in the California state house; the federal
Environmental Protection Agency and the Consumer Product Safety Commission move to
increase safeguards; an industry front group touting flame retardants shut down; a retailer
halted sales of a baby mattress containing chemicals linked to cancer; and California announced
it would overhaul its rules, which were the de facto national standard. “The Shame of the Boy
Scouts” The Los Angeles Times By Jason Felch, Kim Christensen and Times staff The Los Angeles
Times made public thousands of files documenting sexual abuse of Boy Scouts by their troop
leaders, resulting in reforms that will help ensure the protection of children. The Boy Scouts of
America has launched a comprehensive review of the files, with a promise to report to law
enforcement any cases not previously disclosed. The Scouts also apologized to victims of abuse
and offered to pay for their counseling. Impact: Within days of the Times disclosure of the long-
suppressed Boy Scouts’ sexual abuse archive, more than 100,000 people had pored over the
newspaper’s online database of 5,000 abuse files and case summaries. Some sought to learn
whether their molester had ever been caught, or had abused other boys. The Boy Scouts of
America has launched a comprehensive review of the files, with a promise to report to law
enforcement any cases not previously disclosed. The Scouts also apologized to victims of abuse
and offered to pay for their counseling. A Milwaukee pediatrician was forced to surrender his
medical license after the state examining board learned — from the Los Angeles Times — that
he had admitted to molesting two Scouts. “Wal-Mart Abroad” David Barstow The New York
Times In his series, David Barstow demonstrated not only that Wal-Mart’s conquest of Mexico
was built on a secret foundation of corruption, but it also revealed how top executives feared
exposure of their practices and made attempts to keep them in the dark. Impact: As a result of
this series, the Justice Department and the Securities Exchange Commission are investigating for
violations of the federal antibribery law, the Foreign Corrupt Practices Act. The Times
revelations brought a sudden halt to a growing movement to ease up on Corrupt Practices
enforcement. In Mexico, authorities are investigating Wal-Mart, the country’s largest private
employer, for possible violations of its anticorruption laws. Even before the first Times article
was published, the investigation shook Wal-Mart into action. The company hurriedly notified
federal authorities of the Mexican situation and reopened its own investigation. In mid-
November 2012, Wal-Mart disclosed in a regulatory filing that it was examining possible
violations of the antibribery law in three of its other primary overseas markets — China, India
and Brazil. Amid shareholder suits and protests, Wal-Mart has also radically overhauled its
compliance and investigation protocols, and a number of employees implicated in the scandal
have left the company. By year’s end, Wal-Mart’s investigation had cost it nearly $100 million.
“State Integrity Investigation” Collaboration among the Center for Public Integrity, Global
Integrity and Public Radio International, Investigative News Network The State Integrity
Investigation is an unprecedented, data-driven analysis of each state’s laws and practices that
deter corruption and promote accountability and openness. Impact: Results of this series
include an ever-growing number of states that have sparked or accelerated reform in
government, ranging from the increase in disclosure requirements for lobbyists and government
officials, to the formation of panels to explore ideas for an ethics reform package. Coverage of
the project and reaction to it has been massive, and its findings have been featured in local
outlets across the country, prompting action at the state level. Three states — Delaware, Iowa
and Maine — have passed laws that improve access to open records and increase disclosure
requirements for lobbyists and government officials. Five additional states — California,
Michigan, Ohio, South Carolina and North Dakota — have proposed laws that would increase
transparency in government. Good government groups and legislators in at least seven states —
Arkansas, Florida, Hawaii, Georgia, New York, Ohio and Texas — have launched reform
campaigns.
solvency
In the United States, reporters ought to have the right to protect the identity of
confidential sources
The aff has symbolic solvency – strengthens protections for the press
Koningisor 18 (CHRISTINA, First Amendment Fellow @ New York Times, The De Facto
Reporter’s Privilege, The Yale Law Journal, 2018,
https://www.yalelawjournal.org/pdf/Koningisor_ojr74u1a.pdf)
Application of that standard for the next half century resulted in victories for speakers whose
speech was only minimally threatening to public order,43 but proved wholly insufficient when
push came to shove to protect more challenging speech and association." Only in more recent
times have the Courts applied a refurbished version of that test in a more speech protective
fashion.45
The other reason that a balancing test falls short of providing significant protection is its lack of
predictability. If all a journalist can tell a source about the law's protection is that it is available
depending on the outcome, months or years later, of a subjective and contingent legal formula,
that is not exactly a recipe for confidence in the mind of confidential sources. That is particularly
true when even highly conscientious and First Amendment-friendly judges can differ in any
particular case on whether the government's need for the confidential information is sufficiently
pressing so that the rights of the press-and, remember, through the press, the public-must
yield.46
Obviously, if the choice for the press is a "qualified" privilege, or none at all, pragmatism
dictates opting for the former. But the protection afforded, especially in cases where it is
needed most, may be so ephemeral that it is equivalent to no protection at all. The pattern of
cases in the wake of the Miller/Cooper matter certainly provides cause for concern. In a number
of prominent cases since the Miller/Cooper ruling, the press has had mixed results in continuing
to try to prevail in fashioning constitutional or common law protection for confidential sources.
Other scholars have suggested more workable functional approaches that essentially ask whether the
individual claiming the privilege acts like a journalist. The most attractive approach is one
suggested by Professor Linda Berger, who has argued that the privilege should be afforded to
anyone who is engaged in the “journalistic work process.”367 Berger identifies three essential
elements of that process: regular and public dis- semination; the presence of internal
verification measures; and transparency regarding the owner or sponsor of the publication and
the editorial standards that are followed.368 This approach is based on a desire to expand the category of
those eligible to invoke the privilege beyond mainstream journalists, while keeping the courts
out of difficult and subjective questions such as those discussed above.369
impact calc
Probability – prefer empirical evidence on the consequences of the free flow of
information. Empirics validate predictions and separate trends from exceptions.
Moreover, leaks are intrinsically unpredictable and defy specific predictions –
only broad empirics can suggest causality.